National Review has published in the 2/20 issue my essay, “Fair-Weather Originalists.” This essay, which builds on an earlier online entry, seeks to chart the sudden reversal of positions on the left with respect to federalism, the separation of powers, and indeed constitutionalism more broadly. My original title was “Fair-Weather Constitutionalists,” as indeed there were many progressive originalists before Trump, but authors do not have control over such things.
Here is the introduction:
All of a sudden, progressives have discovered the separation of powers. After eight years spent ridiculing tea partiers who bitterly cling to the Constitution, liberals now embrace its structural protections as their last, best hope to stop President Trump. Today’s Left is just the most recent social movement that has appealed to the Framers after failing at the ballot box. And while I always welcome new students of originalism, I can offer only two cheers for our fair-weather constitutionalists. Their conversion, alas, is born of political expediency, not any sense of constitutional consistency.
From 2009 through early 2017, President Obama’s supporters blithely enabled him as he trampled the Constitution’s parchment barriers to implement progressive policies: granting lawful presence to millions of aliens, suspending enforcement of marijuana laws, rewriting onerous provisions of Obamacare, entering into international “agreements” without Senate ratification, and the list goes on. At each juncture, charges of lawbreaking on the right were met with crickets on the left. Their defense: The president has the discretion to act; courts should not serve as forums for political disputes; gridlock in Congress justifies the president’s actions. All the while, I warned that the precedents set by the 44th president would pave the way for even bolder actions by the 45th president.
Obama acolytes, who should have foreseen this risk, were complacent, perhaps because it was simply unthinkable that a Republican could regain the White House. What’s the downside to giving boundless authority to an executive you like? Alas, on Election Day, the Left was left flat-footed by Trump’s unexpected victory. On a dime, they turned to an unlikely source to preserve their progressive values: the text and history of the Constitution.
And, as relevant to the Emoluments Clause debate:
Up until 2016, discussions of the emolument clause were limited to law reviews. Scholars debated about what an emolument is and whether the prohibition applies to the commander-in-chief. For example, President Washington accepted a key to the Bastille from the Marquis de Lafayette without seeking Congress’s permission, but when President Jackson received a gold medal from Simón Bolívar, he surrendered it to Congress. Whether our first president violated the emolument clause was an interesting theoretical question, but practically it was irrelevant — until it became useful to progressive causes. A few days after the recent inauguration, Citizens for Responsibility and Ethics in Washington (CREW) filed a federal lawsuit against the president. The group alleged that revenue collected by President Trump’s business interests from foreign governments (e.g. hotel bills) constituted an unconstitutional emolument.
Despite the current outrage about payments from foreign governments, not a single constitutional scholar has ever batted an eyelash when sitting presidents profited from foreign governments. (Indeed, of the four law professors who joined CREW’s lawsuit, only one’s scholarship had actually discussed the Emoluments Clause before 2016.) President Obama’s books, for example, have generated nearly $17 million in royalties. It is safe to assume that at least one copy has been purchased by a foreign government. Where were the demands for the president to release his global royalty statements so we could determine whether Vladimir Putin or the National Library of China bought Dreams from My Father?
It doesn’t matter that book royalties are counted in pennies; the Constitution does not set a threshold amount for an unconstitutional emolument. Nor does Article I distinguish between payments made through a publishing company and those made through a real-estate trust. Do such payments constitute emoluments from foreign states? Who knows? Not even the most ardent tea-partier opponents seized upon this obscure clause, let alone filed a legal challenge. The issue has never been litigated.
I also discuss the decision of progressive states to turn to the federalism precedents–such as Printz and NFIB–to protect sanctuary city policies, even though the same states filed brief in support of the federal government in both cases.
I concluded with a cautionary note:
All these examples of ambivalence to principle are the embodiment of fair-weather constitutionalism. But a principle that was not justified by the text and history of the Constitution before November 8, 2016, does not become justified after Election Day. Those committed to the original understanding of the Constitution should welcome those who — at least for the moment — defend federalism and the separation of powers, but must not shirk from exposing this marriage of convenience.
I don’t expect litigators to espouse any sort of constitutional consistency, but scholars should be held to a higher standard. When we identify ourselves as professor, that connotes a certain authority that mild-mannered lawyers lack. Opposing precedents when they hinder our policy preferences, then immediately supporting them once they are helpful, saps whatever credibility academics possess.